gno.law

Crosby v. Neuman CA4/1

California Court of Appeal · D061590 · 2013-12-13 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. 37-2010-00057331-CU-CO-NC
Trial judge
Robert P. Dahlquist
Outcome
affirmed — Affirmed.
Area
civil
Panel
McINTYRE (author), Judith D. McConnell, Gilbert Nares

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:47Z · confidence high

The trial court denied Neuman's postjudgment motion to set aside a summary judgment, finding he failed to comply with Code of Civil Procedure section 473, subdivision (b) and did not show excusable neglect. The Court of Appeal affirmed, holding that mandatory relief under section 473 does not apply to summary judgments and that Neuman waived or failed to prove his other claims.

Ruling reviewedStandardThe courtThe model
Denial of motion to set aside summary judgment based on lack of mandatory relief under CCP § 473, subd. (b)
“By its express language, the mandatory relief provision of section 473, subdivision (b) applies only to relief from defaults, default judgments and dismissals.”
abuse of discretioncorrectagree with court
agree with court
Denial of motion to set aside summary judgment based on trial court's consideration of evidence
“Neuman has not timely appealed from the judgment and his arguments attacking the merits of the summary judgment are not cognizable in his appeal.”
de novocorrectagree with court
agree with court
Denial of motion to set aside summary judgment based on defective service
“Crosby utilized at least one service method which complied with the requirements of section 437c, subdivision (a).”
abuse of discretioncorrectagree with court
agree with court

Authorities

  • relied: Gotschall v. Daley (2002) 96 Cal.App.4th 479 — Interpretation of CCP § 473, subd. (b) mandatory relief provisions.
  • relied: Benedict v. Danner Press (2001) 87 Cal.App.4th 923 — Interpretation of CCP § 473, subd. (b) mandatory relief provisions.
  • relied: Metropolitan Service Corp. v. Casa de Palms. Ltd. (1995) 31 Cal.App.4th 1481 — Purpose of mandatory relief amendment to section 473.
  • relied: Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249 — Mandatory relief is a narrow exception to discretionary relief for default judgments and dismissals.
  • relied: Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102 — Arguments not asserted below are waived and will not be considered for the first time on appeal.
  • relied: English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130 — Summary judgments are neither defaults, nor default judgments, nor dismissals.
  • relied: Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290 — Explicit statutory language of section 473, subdivision (b) provides no basis for extending the mandatory provision to summary judgments.
  • relied: De Luca v. Board of Supervisors of Los Angeles County (1955) 134 Cal.App.2d 606 — One who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of the notice.

The appellate opinion: sound — The court correctly applied the statutory text of CCP § 473, subd. (b) to exclude summary judgments from mandatory relief, citing binding authority. It also correctly identified the untimeliness of the appeal from the judgment itself, rendering the merits arguments moot.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

The trial court granted summary judgment for Crosby after Neuman, sanctioned with deemed admissions, failed to oppose the motion, and then denied Neuman's Code of Civil Procedure section 473, subdivision (b) motion to set aside the judgment because he did not attach the proposed pleading and did not show excusable neglect. The Court of Appeal affirmed, holding the mandatory relief provision was not raised below and in any event does not reach summary judgments, that Neuman's attacks on the merits of the summary judgment were not cognizable because his appeal from the judgment was untimely, and that service of the motion by Express Mail 80 days before the hearing complied with section 437c, subdivision (a).

Ruling reviewedStandardThe courtThe model
Denial of motion to set aside summary judgment under section 473, subdivision (b); Neuman's claim to mandatory relief as a self-represented party
“Since Neuman sought to set aside a summary judgment, the mandatory relief provision of section 473, subdivision (b) does not apply and cannot afford him relief.”
abuse of discretioncorrectagree with court
The mandatory provision of section 473(b) by its terms covers only defaults, default judgments, and dismissals; English v. IKON and Prieto so hold, and the Supreme Court in Zamora described the provision as a narrow exception. The court also properly noted Neuman argued only discretionary relief below, so the mandatory-relief theory was forfeited under Santantonio. Although the court framed the question as abuse of discretion, applicability of the mandatory provision is a legal question and the result is correct under either standard. Neuman did not separately challenge the trial court's discretionary findings (missing proposed pleading, no excusable neglect), so the court had no need to address them.
Grant of summary judgment; Neuman's claim that the trial court failed to consider all evidence and that a triable issue existed as to a $100,000 damages cap
“Thus, Neuman has not timely appealed from the judgment and his arguments attacking the merits of the summary judgment are not cognizable in his appeal.”
de novonot reachedagree with court
Judgment was entered November 1, 2011, notice of entry served November 3, 2011, and the notice of appeal filed March 21, 2012, well past the 60-day period of California Rules of Court, rule 8.104(a). The timeliness of an appeal is jurisdictional, and an appeal from a postjudgment order denying a section 473 motion does not resurrect the time to attack the judgment itself. The court correctly declined to reach the merits.
Trial court's consideration of the summary judgment motion over Neuman's claim that service was defective and confusing
“Specifically, Crosby served the motion via Express Mail 80 days before the hearing, which exceeded the 75 plus 2 days requirement for that service method.”
unclearcorrectagree with court
Section 437c, subdivision (a) adds 10 days for out-of-state mail service but only two court days for Express Mail or overnight delivery; the overnight service to the correct address 80 days before the hearing satisfied the statute regardless of the earlier misaddressed regular-mail service. The court also reasonably relied on De Luca for the rule that a party who appears at a noticed hearing cannot complain of defective notice, and Neuman supplied no reporter's transcript showing he raised service at the hearing, so he failed to carry his burden of showing error. The court did not state a standard of review for this issue, but the result follows under any standard.

Authorities

  • relied: English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130 — The mandatory relief provision of section 473, subdivision (b) applies only to defaults, default judgments, and dismissals, and a summary judgment is none of these.
  • relied: Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290 — The explicit statutory language of section 473, subdivision (b) provides no basis for extending the mandatory provision to summary judgments.
  • relied: Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249 — The mandatory relief provision is a narrow exception to the discretionary relief provision for default judgments and dismissals.
  • relied: Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102 — Arguments not asserted in the trial court are generally waived and will not be considered for the first time on appeal.
  • relied: De Luca v. Board of Supervisors of Los Angeles County (1955) 134 Cal.App.2d 606 — One who has been notified to attend a proceeding and does so cannot be heard to complain of insufficiency of the notice.
  • relied: Metropolitan Service Corp. v. Casa de Palms, Ltd. (1995) 31 Cal.App.4th 1481 — The purpose of the mandatory relief amendment is to relieve the innocent client of the burden of the attorney's fault and avoid malpractice litigation.
  • relied: Gotschall v. Daley (2002) 96 Cal.App.4th 479 — Describes the discretionary and mandatory relief provisions of section 473, subdivision (b).
  • relied: Benedict v. Danner Press (2001) 87 Cal.App.4th 923 — Describes the requirements for mandatory relief under section 473, subdivision (b).

The appellate opinion: sound — The opinion answers each of Neuman's three contentions with the governing statute and on-point published authority: the mandatory provision of section 473(b) does not reach summary judgments, the untimely appeal bars review of the judgment's merits, and the Express Mail service satisfied section 437c(a). It does not expressly state the standard of review for the section 473 or service issues and does not separately discuss the trial court's discretionary-relief findings, but Neuman apparently did not challenge those findings, so the omissions do not undermine the result.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 12/13/13 Crosby v. Neuman CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JAMES D. CROSBY, D061590 Plaintiff and Respondent, v. (Super. Ct. No. 37-2010-00057331- CU-CO-NC) PHILIP NEUMAN, Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Robert P.

Dahlquist, Judge. Affirmed.

Law Office of Timothy P. Kindelan and Timothy P. Kindelan for Defendant and Appellant.

Ferris & Britton, Michael R. Weinstein and W. Lee Biddle for Plaintiff and Respondent.

Philip Neuman appeals a postjudgment order denying his motion to set aside a summary judgment in favor of James D. Crosby. Neuman contends the trial court abused its discretion in denying his motion because: (1) he was entitled to mandatory relief under Code of Civil Procedure section 473, subdivision (b) (undesignated statutory references are to this code); (2) the trial court did not consider all of the evidence in granting summary judgment; and (3) service of the summary judgment motion was defective. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Neuman entered into a contract to employ Crosby as in-house counsel for a period of three years. Approximately two years later, Crosby sued Neuman for breach of contract, alleging Neuman failed to pay him and committed other employer violations.

Crosby obtained a default judgment against Neuman. The trial court later granted Neuman's request to set aside the default judgment.

During the course of the litigation, Neuman failed to respond to Crosby's discovery requests. As a result, the trial court sanctioned Neuman and deemed the matters specified in Crosby's requests for admissions admitted. The deemed admissions included that Neuman breached the employment agreement in numerous respects, including by failing to pay Crosby in accordance with its terms.

Crosby moved for summary judgment. Neuman failed to oppose the motion, but appeared at the hearing and requested a continuance. The trial court denied Neuman's request for a continuance and granted Crosby's summary judgment motion. The court entered judgment against Neuman in the amount of $382,533.87.

Neuman moved to set aside the judgment on the grounds that Crosby failed to meet his burden on summary judgment and Neuman's failure to file an opposition should be excused. The trial court denied Neuman's motion, finding he did not comply with 2 section 473, subdivision (b) because he failed to provide the court with the "pleading proposed to be filed." The court also noted that it was "not persuaded that . . . Neuman's failure to timely file [an] opposition to the motion for summary judgment was the result of mistake, inadvertence or excusable neglect particularly when [Neuman] argue[d] that 'the mistake would not have occurred had [he] been represented by counsel.' "

DISCUSSION

I. Mandatory Relief Under Section 473, Subdivision (b)

Neuman argues the trial court abused its discretion in denying his motion to set aside the judgment. Specifically, he claims he should be treated the same as an attorney who would be entitled to mandatory relief under section 473, subdivision (b). We disagree.

Section 473, subdivision (b) grants a court discretion "upon any terms as may be just," to "relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Under a separate, mandatory provision of the section, "the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect." (§ 473, 3 subd. (b); Gotschall v. Daley (2002) 96 Cal.App.4th 479, 482-483; Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 926.)

The purpose of the mandatory relief amendment to section 473 was to "relieve the innocent client of the burden of the attorney's fault, to impose the burden on the erring attorney, and to avoid precipitating more litigation in the form of malpractice suits."

(Metropolitan Service Corp. v. Casa de Palms. Ltd. (1995) 31 Cal.App.4th 1481, 1487.)

It is a "narrow exception to the discretionary relief provision for default judgments and dismissals." (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.)

Here, Neuman's argument is flawed for multiple reasons. As an initial matter, Neuman did not argue in the trial court that he was entitled to relief under the mandatory provision of section 473, subdivision (b). Instead, he argued the trial court "should exercise [its] discretion" because his "[m]istake as to the [d]ue [d]ate for [o]pposition [p]apers [was] [e]xcusable." Generally, arguments not asserted below are waived and will not be considered for the first time on appeal. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 113.) In any event, we reject Neuman's argument because the mandatory relief provision does not apply in this case.

By its express language, the mandatory relief provision of section 473, subdivision (b) applies only to relief from defaults, default judgments and dismissals. (§ 473, subd.

(b).) As the court observed in English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 133, summary judgments are neither defaults, nor default judgments, nor dismissals. Thus, the explicit statutory language of section 473, subdivision (b)

"provides no basis for extending the mandatory provision" to such judgments. (Prieto v. 4 Loyola Marymount University (2005) 132 Cal.App.4th 290, 297.) Since Neuman sought to set aside a summary judgment, the mandatory relief provision of section 473, subdivision (b) does not apply and cannot afford him relief.

II. Trial Court's Consideration of the Evidence Neuman argues the summary judgment should be set aside because the trial court did not consider all of the evidence. Specifically, he contends Crosby's evidence created a triable issue of fact as to whether damages should have been capped at $100,000. We reject this argument.

Neuman concedes that his "appeal is presented as a request to reverse the trial court's ruling denying relief under [section] 473, [subdivision] (b)." He likely concedes this point because his appeal from the judgment would have been untimely. The trial court entered judgment in this case on November 1, 2011, and Crosby served Neuman with notice of entry of judgment on November 3, 2011. Under California Rules of Court, rule 8.104(a), Neuman had 60 days from service of the notice of entry of judgment to appeal. That time expired on January 2, 2012. Neuman did not file his Notice of Appeal until March 21, 2012. Thus, Neuman has not timely appealed from the judgment and his arguments attacking the merits of the summary judgment are not cognizable in his appeal.

III. Alleged Defective Service Neuman argues that Crosby's failure to properly serve the summary judgment motion caused confusion and the trial court should not have considered it. We reject this argument.

5 Based on parties' arguments and the record before us, it appears it is undisputed that Crosby initially served the summary judgment motion on Neuman via regular mail service on July 27, 2011 to an address in "Upper Saddle Ridge," New Jersey. A few days later, Crosby served the motion via overnight mail to the same street address, but this time the city was identified as "Upper Saddle River," which Neuman claims is the proper address. The hearing on the summary judgment motion was on October 21, 2011, which was 80 days after the overnight mail service.

Section 437c, subdivision (a) outlines the service requirements for a motion for summary judgment. This section provides that "[n]otice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by . . . 10 days if the place of address is outside the State of California but within the United States, . . . and if the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days."

Neuman contends the two different methods for service caused confusion which contributed to his failure to file an opposition and rendered it improper for the trial court to consider the motion for summary judgment. He claims Crosby was required to serve him 85 days before the hearing because he was served outside the State of California.

We are not convinced by this argument because Crosby utilized at least one service method which complied with the requirements of section 437c, subdivision (a).

6 Specifically, Crosby served the motion via Express Mail 80 days before the hearing, which exceeded the 75 plus 2 days requirement for that service method. (§ 437c, subd.

(a).)

Further, although Neuman claims the two separate service methods caused confusion, he fails to explain how it prevented him from filing an opposition. This is not a situation where the opposition was late. Rather, Neuman did not file an opposition at all. We find it hard to believe that Neuman understood the two service methods completely relieved him from his opposition requirement. If we were to accept Neuman's argument, a moving party who makes a mistake as to service and later corrects it would essentially render his motion for summary judgment void.

Lastly, "[t]he general rule is that one who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of the notice; it has in such instance served its purpose." (De Luca v. Board of Supervisors of Los Angeles County (1955) 134 Cal.App.2d 606, 609.) Neuman was clearly aware of the hearing date because he appeared at the hearing. The order after the hearing indicates that Neuman requested a continuance, but there is no reference to whether that request was based on defective service. He did not provide us with a copy of the reporter's transcript from the summary judgment hearing and there is no other indication in the record that he challenged service at the hearing. Accordingly, Neuman failed to meet his burden to show error.

7 DISPOSITION

The postjudgment order denying Neuman's motion to set aside the judgment is affirmed. Crosby is entitled to costs on appeal.

MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

NARES, J.

Cites, in this corpus